Citation Nr: 9924303
Decision Date: 08/26/99 Archive Date: 08/27/99
DOCKET NO. 98-07 146 ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Winston-Salem, North Carolina
THE ISSUE
Entitlement to an increased rating for a left knee disorder,
currently evaluated as 10 percent disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
C. Schlosser, Associate Counsel
INTRODUCTION
The veteran had active military service from August 1976 to
August 1980.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a July 1996 rating decision in which
the RO denied an increased rating for a left knee disorder.
The veteran appealed and requested a hearing at the RO before
a member of the Board. In August 1998, the veteran appeared
at the RO before the undersigned acting member of the Board
in Washington, D.C., for a videoconference hearing in lieu of
a Travel Board hearing.
REMAND
The veteran and his representative contend, in essence, that
his left knee disorder is more disabling than currently
evaluated and warrants a rating in excess of 10 percent.
Following a complete review of the claims folder, the Board
finds that further development is required. The service
medical records show that the veteran sustained a tear of the
medial semilunar cartilage, a partial tear of the anterior
cruciate ligament, and damage to the lateral cartilage of the
left knee in service during a softball game in 1977. The
veteran was treated with medication and prescribed a brace
and limited activity.
The veteran's left knee disorder has been evaluated under the
provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5257 (1998).
Recurrent subluxation or lateral instability resulting in
slight knee impairment is rated 10 percent disabling. When
recurrent subluxation or lateral instability produces
moderate knee impairment, a 20 percent rating is assigned.
Recurrent subluxation or lateral instability resulting in
severe knee impairment is 30 percent disabling. Diagnostic
Code 5257.
VA outpatient treatment records reflect that the veteran was
seen in May 1997 for follow-up of his left knee after a five
month absence. It was indicated that the veteran had
previously been evaluated for surgery due to left knee pain
and catching. It was indicated that the veteran's knee pain
had decreased following a recent weight loss of 35-40 pounds.
The veteran was discharged from the clinic at that time.
At his videoconference hearing before the undersigned in
August 1998, the veteran testified that his physical activity
is limited due to the lateral instability in his left knee.
Once a week, after a day involving exertion, walking,
lifting, carrying, going up stairs, etc, the veteran said
that he has swelling, redness and heat in the left knee. He
takes medication for pain relief and to alleviate swelling in
the left knee, and elevates his knee on a daily basis to
relieve pain. The veteran reported that he goes for
treatment at the Durham, North Carolina VA Medical Center
(VAMC) approximately four times a year. He denied any
hospitalizations related to his left knee, but indicated that
he has, on occasion sought treatment in the emergency room.
The veteran said that he wears a brace on his left knee when
he knows he is going to be active; otherwise, he generally
uses an Ace bandage for support. The lateral instability in
his knee has worsened in the last three years to the point
that he has fallen on a few occasions. The veteran testified
that his knee gives way about two times per month. The
veteran is employed as a letter carrier for the Postal
Service. He rides in his vehicle for approximately 75
percent of his duties. He used to have a walking route, but
changed due, in part, to his left knee disorder. He
testified that his employment records may reflect some
consideration given to his left knee disability with regard
to his employment. The veteran indicated that he had not
received any private or VA treatment for his knee since May
1997.
A claim for an increased evaluation is well grounded if the
claimant asserts that a condition for which service
connection has been granted has worsened. Proscelle v.
Derwinski, 2 Vet. App. 629, 632 (1992). A finding of a well-
grounded claim invokes VA's duty to assist the veteran in the
development of facts pertinent to his claim. 38 U.S.C.A. §
5107(a) (West 1991); 38 C.F.R. § 3.103(a) (1996). The United
States Court of Appeals for Veterans Claims (known as the
United States Court of Veterans Appeals prior to March 1,
1999) (hereinafter the Court) has held that the duty to
assist the veteran in obtaining and developing available
facts and evidence to support his claim includes obtaining
treatment records to which the veteran has referred.
Littke v. Derwinski, 1 Vet. App. 90 (1990). Fulfillment of
the statutory duty to assist includes conducting a thorough
and contemporaneous medical examination, one which takes into
account the records of prior medical treatment, so that the
evaluation of the claimed disability will be a fully informed
one. Green v. Derwinski, 1 Vet. App. 121 (1991). The Board
finds that additional development of the evidence is
necessary.
On VA orthopedic examination in March 1997, the veteran
complained of pain and difficult motion of the left knee with
occasional locking, subluxation and slipping. The veteran
reported tenderness on palpation and swelling despite full
range of motion. On examination, the veteran was noted to
have strong, equal quadriceps. Alignment of the left knee
appeared satisfactory. Range of motion in the left knee was
reported from 0 to 140 degrees. There was evidence of laxity
medially and laterally, less laterally. The VA examiner was
unable to get the left knee joint to subluxate or shift
during the examination, but noted that the veteran's history
was classical for the same. The veteran was able to perform
a knee bend and was observed to have a normal gait. The
examiner stated that the "veteran does not have flares or
does not have weakness." With respect to further comment
for compliance with DeLuca v. Brown, 8 Vet. App. 202 (1995),
the examiner indicated that he was unable to comment on the
veteran's degree of pain or transitory weakness when not
under observation without pure speculation. Following the
additional development of the evidence, the veteran should be
afforded an additional VA examination to order to obtain the
necessary findings for adjudication of the claim.
The Board also notes that the March 1997 VA examination
report noted evidence of degenerative change on x-ray of the
left knee. The RO has not considered whether the veteran may
be entitled to a separate rating for arthritis in the left
knee. In VAOGCPREC No. 23-97 (July 1, 1997), the General
Counsel held that a claimant who has arthritis and
instability of the knee may be rated separately under
Diagnostic Codes 5003 and 5257. See also VAOGCPREC No. 9-98
(August 1998).
The case is REMANDED to the RO for the following action:
1. The RO should contact the veteran and
ask him whether he has received any
treatment for his left knee disorder
since May 1997, the date of the most
recent VA outpatient treatment records in
the claims folder. Based on his
response, and with appropriate
authorizations, the RO should obtain a
complete copy of all treatment records
referable to the veteran's left knee, and
associate them with the claims folder.
Even if the veteran does not respond to
the foregoing inquiry the RO should
obtain all VA treatment records of the
veteran which are not currently in the
file and add them to the file.
2. The RO should obtain, with
appropriate authorization, a copy of the
veteran's employment records from the
United States Postal Service. All
records obtained should be associated
with the claims folder.
3. Following receipt of the
aforementioned evidence, if any, the RO
should schedule the veteran for a VA
orthopedic examination. The examiner
MUST review the entire claims folder,
including a copy of this REMAND, prior to
the examination and he/she should
indicate in the report of examination
that a review of the claims folder was
accomplished. The purpose of the
examination is to assess the current
severity of the veteran's left knee
disorder. All findings should be
reported in detail. In particular, the
examiner should (a) conduct range of
motion studies of the left knee and
specify the range of flexion and
extension in degrees; (b) comment as to
whether there is slight, moderate, or
severe impairment of the left knee, as
reflected by any recurrent subluxation or
lateral instability; (c) indicate whether
there is x-ray evidence of arthritis in
the left knee; and (d) review pertinent
aspects of the veteran's medical and
employment history, and comment on the
effects of the demonstrated disability in
the left knee upon the veteran's ordinary
activity and on how it impairs him
functionally, particularly in the work
place. The examiner should also
specifically comment on the degree of
functional loss, if any, resulting from
pain on undertaking motion, weakened
movement, excess fatigability, or
incoordination, as contemplated by
DeLuca, supra, and 38 C.F.R. §§ 4.40 and
4.45 (1998). If such analysis is not
possible, the reasons for this
impossibility should be set forth. If
the veteran is examined at a time of
maximum disability, this should be noted.
4. Following completion of the
foregoing, the RO must review the claims
folder and ensure that all of the
aforementioned development action has
been conducted and completed in full. If
any development is incomplete,
appropriate corrective action is to be
implemented.
5. After completion of all requested
development, the RO should review the
veteran's claim. The RO should determine
whether the veteran is entitled to a
separate disability rating for left knee
arthritis, in addition to the rating
assigned for instability under Diagnostic
Code 5257. See VAOPGCPREC's 23-97 and 8-
98, supra. If he remains dissatisfied
with the RO's decision, he and his
representative should be issued a
Supplemental Statement of the Case
(SSOC).
After the veteran and his representative have been given an
opportunity to respond to the SSOC, the claims folder shall
be returned to this Board for further appellate review, if in
order. The appellant need take no action unless otherwise
notified, but he has the right to submit additional evidence
and argument on the matter the Board has remanded to the RO.
Kutscherousky v. West, 12 Vet. App. 369 (1999). The purpose
of this remand is to obtain clarifying data and to comply
with a precedent decision of the Court. The Board intimates
no opinion, either legal or factual, as to the ultimate
disposition of this appeal.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board or by the Court for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans' Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1999) (Historical and Statutory Notes).
In addition, VBA's Adjudication Procedure Manual, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
K.J. ALIBRANDO
Acting Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a
decision of the Board is appealable to the Court. This
remand is in the nature of a preliminary order and does not
constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (1998).